Florida criminal defense lawyer John Guidry II has made a thorough and passionate argument on his blog for letting a jury know what the sentence is likely to be if it convicts the defendant in a criminal trial. He writes in part:
Florida juries are not permitted to know the most basic truth of a case—the potential sentence. Kind of crazy, right? Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!). Such fears say a lot about how harsh our criminal justice system has become.
Knowledge is power. A fully informed citizenry, typically, provides insurance against the tyranny of outrageous government legislation. Juries should know that a $300 purchase of oxycodone pills can lead to a 25 year minimum mandatory sentence. Yes, as little as $300. No, juries don’t know this, even when they’re the ones about to impose the 25 year sentence. Sadly, a minimum mandatory prison sentence for a $300 drug deal is common place in Florida. Most citizens mistakenly believe that 25 years of mandatory prison are reserved for the likes of a Pablo Escobar (any Narcos fans out there? Great Netflix series, I recommend it). Even child molesters fair better, on average, than folks who possess minimum mandatory drug amounts. Child rapists average around 17 years in prison. Naturally, prosecutors want to keep jurors in the dark about mandatory sentences on drug offenses, as it is far easier to obtain guilty verdicts when the jury doesn’t realize just how devastating these minimum prison terms turn out to be for defendants and their family.
We’re often told that ignorance of the law is no excuse. Try telling the judge that you just didn’t know what the speed limit was, and see if that provides you any sort of defense. Sympathy, maybe. A defense, no. We citizens are all charged with knowledge of the criminal laws and their penalties—we’re just not allowed to mention such things in a courtroom!
Well, he’s an advocate; that what trial lawyers are supposed to be good at. Naturally, his example is a drug sentence. I agree: that sentence for purchasing oxycodone pills is ridiculous. However, anyone breaking the law by doing that has accepted the risk of that sentence. The Seventies TV show “Baretta” (starring probable murderer Robert Blake) had a theme song that went “Don’t do the crime if you can’t do the time.” That’s still true. A criminal should know the law he is presuming to break. He deserves no sympathy if he gambles and loses. If he doesn’t break the law, then the sentence, however harsh, is irrelevant.
The sentence disparity needs to be fixed with the oxycodone crime and many others, and it’s the legislature’s job to fix it. That’s not what juries are for: they haven’t been elected; they have no special expertise. Most jurors couldn’t even make sense out of most statutes as written. Similarly, it is appropriate for the potential sentence to be left out of the fact-finding aspect of a criminal trial because it is irrelevant to the jury’s function, which is only determining guilt on the facts. Whether the law is fair is irrelevant. How many kids the defendant has, what good deeds the accused might have done, how much he is loved, that he is kind to dogs, that he was a war hero—all irrelevant. The questions for the jury are “Did he do it?” and “Was it proven beyond a reasonable doubt?”
Naturally defense attorneys would love the jury to also decide whether a conviction would be “fair” — thus Guidry’s post. He’s really talking about jury nullification, which I wrote about recently here. A jury that makes its decisions based on emotion and extraneous information unrelated to the crime itself is a bad jury, and bad juries, like dumb juries, ignorant juries, and bigoted juries are easier for lawyers to manipulate. The system is based on the assumption that typical, untrained citizens can weigh evidence, use common sense, and in a group, determine guilt….and that’s all. There is considerable evidence that they aren’t even very good at that; Guidry wants them to legislate and be judge too.
He does raise an interesting point about Florida, though:
Technically, Florida now has a law on the books that requires a judge to inform the jury of the penalty involved. Florida Statute 918.10(1) provides that “At the conclusion of argument of counsel, the court shall charge the jury. The charge shall be only on the law of the case and must include the penalty for the offense for which the accused is being charged”. Unfortunately, Section 918.10 has fallen out of favor, and now conflicts with the Florida Rules of Criminal Procedure, Rule 3.390(a). Rule 3.390 states that “Except in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial”.
The Rule is correct.
The law is wrong.